September 16, 2006

Torture at Will?

In an ideal world, one could, say, pick up a newspaper and understand what was going on in this country. In this world, that's too much to ask. Last week, I was too busy to follow the news much, so I brought home a Friday New York Times to cure my ignorance (okay, in truth, I wanted the crossword puzzle, but the news section was a side benefit). Here's a headline: "AN UNEXPECTED COLLISION OVER DETAINEES." The article suggests that Republican Senators are challenging Bush's burning desire to have unlimited powers to detain and torture anyone at will. Sounds like good news, no?

Except, of course, that's not exactly the case. In reality, McCain, Graham, and Warner are pushing a bill in the Senate that somewhat curtails Bush's power. But it still gives him, say, 80 percent of what he wants. And what he wants is appalling. The GOP bill would strip habeas corpus rights for any alien who has been "properly detained as an enemy combatant" (even detainees, hilzoy reminds us, who aren't actually threats) and eliminate their right to challenge their detention in court. Even if they're innocent, as detainees commonly are. It would also weaken the definition of "war crimes," making only "grave breach[es]" of Article 3 of the Geneva Convention a no-no, rather than any violation whatsoever.

It's also still not clear what makes someone an "unlawful enemy combatant." The Senate bill's definition includes those who are "engaged in hostilities against the United States." But what sorts of hostilities? It doesn't quite specify. Aziz Huq argues that under the current language, a grandmother sending money to Cuba—which is, of course, an "enemy" of the United States—could probably be detained, without legal recourse. Obviously that specific scenario doesn't seem likely, but Congress isn't supposed to pass bills that simply hope and trust that the president won't abuse his power and start locking up grannies left and right.

So that's bad. But what's the fighting all about? Well, the Bush administration, for it's part, specifically wants to be able to ignore parts of Article 3 of the Geneva Conventions, so that it can still engage in the following interrogation techniques:

Threaten detainees with violence and death, and threaten their family members with violence and death.

Put detainees in "cold cells," where they stand naked in a near-freezing room and are doused with cold water..

Shackle detainees in standing positions for more than 40 hours, or put detainees in painful stress positions, or force detainees to undergo sleep deprivation.

As Mary Lederman says, this is the key issue. Three Republicans in the Senate have said no, the president can't just ignore the Geneva Conventions—and hence undermine a hugely-important international treaty—just because he wants to employ some tactics of dubious efficacy. Twenty-nine other retired military officials and CIA leaders have also said this is a terrible idea. So now Bush is pouting and saying, fine, in that case, I won't have the CIA interrogate any terror suspects, and if there's an attack on America, well, that's your fault. Our hero.

So in that sense, McCain, Warner, and Graham are trying to do something positive (an earlier McCain bill on this matter gave the administration too much leeway). But their bill still undermines the rule of law in many important respects. Worse, given that it weakens judicial oversight of the Bush administration's overseas detentions, the Senate bill would make it hard to actually enforce the prohibition on torture. They're still willing to trust an administration that has repeatedly flouted the law—and Congress—on this issue. But let's give the Senators a hand because they're all "principled," or something.